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CASE NO.: Appeal (crl.) 649  of  1996

PETITIONER: STATE OF HIMACHAL PRADESH

       Vs.

RESPONDENT: GIAN CHAND

DATE OF JUDGMENT:       01/05/2001

BENCH: CJI, R.C. Lahoti & Doraiswamy Raju

JUDGMENT:

R.C. Lahoti, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The accused-respondent was charged under Section 376 IPC for  having  committed forcible sexual intercourse with  the prosecutrix,  a girl of the age of the 5 years and 6 months, on  29.10.1991  at  about 6.30 p.m.  at  Village  Baru.   On trial,  the learned Sessions Judge found the accused  guilty and  sentenced  him to undergo rigorous imprisonment  for  a period  of  10  years and to pay a fine of Rs.5,000  and  in default  of payment of fine to undergo rigorous imprisonment for  a  further period of 6 months.  The amount of fine,  if realised,  was  directed  to be paid to the  mother  of  the prosecutrix.   The accused- respondent preferred an  appeal. A  Division  Bench of the High Court has by  judgment  dated 22.12.1995  allowed the appeal, set aside the conviction and directed  the  accused-respondent to be  released.   Feeling aggrieved thereby, the State of Himachal Pradesh has come up in appeal by special leave which has been granted.

   PW1  is the mother of the prosecutrix.  Her husband  had expired  a  few years before the date of the incident.   She was   residing   in   the   family  house.    However,   her father-in-law,  her two brothers-in-law and she herself  had separated  in  residence  and  they  were  living  in  three separate  portions  of  the house.  PW1 has a  son  and  two daughters.   The  prosecutrix is the youngest of  the  three children.   The  accused  is  brother   of  wife  of   PW1s brother-in-law,  i.e.,  jeth  or  her  deceased  husbands brother.   The accused, being a relation, was often visiting the  house.  According to the prosecution on the date of the incident,  PW1 had gone to the fields for collecting  grass. Her  son  and the elder daughter had accompanied her.   They returned  to home at about 7 p.m.  PW1, on her return, found her youngest daughter lying below a cot on the lintel of the house.   Her  salwar  and shirt were  having  blood  stains. There  was  blood on the bed sheet and a towel lying on  the cot.   She looked into the private parts of the victim child and  found blood and inflammation therein.  On being  asked, the  prosecutrix told the mother, that when she was  playing the  accused  had committed Bura Kaam (a sinful act)  with

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her.   The  mother  PW1  told about the  incident  the  next morning to her parents-in-law and co-sister (i.e.  husbands brothers wife).  The father of the accused was summoned and was  told  of what the accused had done.  The father of  the accused  defended  his  son saying that he  could  not  have indulged into such a wrongful act.  On the third day, in the morning  hours, when PW1 was going to police station,  Ruldu Ram,  PW9, a member of village Panchayat met her on way  and agreeing  with her advised PW1 to lodge the report with  the police.   The FIR of the incident was lodged in the  morning of  31.10.1991.   An  offence  under  Section  376  IPC  was registered and the investigation commenced.

   On  31.10.1991  at 12.15 p.m.  Dr.  Mudita  Gupta,  PW5, conducted  medico-legal  examination of the prosecutrix  and found the following injuries on her person :

   Local  Exam  -  No external injury.  On  retracting  the labia  -  erythema  seen.   Hymen torn  -  irregular  edges. Posterior  vaginal  wall  tear about 0.5 cm in  length.   No blood clot seen.  No evidence of healing, no pus seen - foul smell.

Tenderness.  No sperms were seen.

   The  observations  noted by Dr.  Mudita Gupta were  that the  prosecutrix  had changed her clothes and taken  a  bath also on the next day of the incident.  The victim had passed urine  and  stool about one hour after the incident.   There was  no  external  injury  on any part of the  body  of  the victim.   Dr.   Mudita  Gupta  opined  that  possibility  of commission  of  rape on the prosecutrix on 29.10.1991  could not be ruled out.

   The  accused was arrested on 31.10.1991 and subjected to medico-legal  examination  on  the same day.   Dr.   Jagdish Gupta  P.W.6, who examined the accused, recorded the  result of his medico-legal examination as under:-

   The  general  behaviour of the patient was normal.   The mental  condition  was normal.  Bath not taken for the  last five  days.   Urine  passed   many  times.   Passing  motion normally.

No stains were found on the body of the patient. Clothing and under-garments.

No injury marks were present on genitals.

No venereal disease was found.

   On  examination  of genital, pubic hairs  were  present. Penis  normal, prepuse retracted, frenum normal.   Testicles were  normal.  There were following injuries present on  his person:-

       Multiple contusions, some of them were patterned on back, buttocks posteromedial aspect of thigh. Redish in colour.

   Dr.   Jagdish  Gupta  opined that there was  nothing  to suggest  that  the  accused was not fit  to  perform  sexual intercourse.

   At  the  trial the prosecutrix appeared as PW7  and  her

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mother  was examined as PW1.  The prosecutrix was 8 years of age  at  the time of her examination.  The  Court  conducted preliminary examination of the witness and observed that the witness  understood the sanctity of oath and then  proceeded to  examine her after administering oath to her.  She stated that  the accused was known to her as he was the brother  of her  Mausi  (Aunt) and was on visiting terms with her  Mausi residing  in her neighbourhood.  On the date and at the time of the incident the accused came to her house in the absence of  her mother or any other member of the family, untied the string  of  her  salwar and also untied the  string  of  his kachcha  (underwear).  Thereafter the accused put his  organ into her private part.  The learned Sessions Judge has noted in  the  statement  of  the witness  that  the  witness  had specifically  stated that the accused had inserted his penis into  her  private part and due to the act committed by  the accused  blood  had started oozing out of her.  The  accused remained at the place of the incident for one or two minutes and  thereafter disappeared.  She had felt pain when the act was  committed  by  the accused.  The accused had  made  the prosecutrix  lie  down  on the cot which was spread  on  the lintel  of  the house.  At that time the sun had set in  and darkness had started spreading.  The mother returned to home at  about  8  p.m.  when she narrated the incident  to  her. PW1,  the  mother of the prosecutrix, has  corroborated  the version of the victim.

   The  doctors,  who had examined the prosecutrix and  the accused respectively, appeared in the witness box and stated the  results  of  the respective  medico-legal  examinations conducted   and  observations  made  by  them   as   noticed hereinabove.   Ruldu  Ram, PW9 corroborated the  version  of PW1.  Smt.  Premi, co-sister of PW1, appeared in the witness box  as  PW8  but she turned hostile and denied  having  any knowledge  of  the occurrence.  The learned  Sessions  Judge found  the prosecution story having been substantiated fully by  the prosecution evidence.  He found the prosecutrix  and her  mother truthful witnesses and worthy of credence.   The version  of  the  prosecutrix   stood  corroborated  by  the testimony  of  her  mother and the  latter  testimony  stood corroborated by the statement of Ruldu Ram, PW9, the village Panch  and  the FIR.  The learned Sessions Judge also  found that  the medical testimony corroborates the version of  the incident  as  given by the prosecutrix.  The clothes of  the prosecutrix  were blood-stained.  The salwar which was  worn by the prosecutrix at the time of the incident and which was seized  by  the  police was sent for  chemical  examination. According  to  the report of Chemical Examiner of  State  of Punjab  spermatozoa was detected on the salwar though not on the  shirt of the prosecutrix and underwear of the  accused. The  learned  Sessions  Judge   convicted  the  accused  and sentenced him as stated hereinabove.

   A  perusal of the judgment of the High Court shows  that delay  in lodging the FIR, change in the description by  PW1 of  the  exact place where the prosecutrix was  raped  (i.e. shifting  of the scene of incident), and non-examination  of two  or  three  little  girls  who  were  playing  with  the prosecutrix  soon  before  the incident - are  the  factors, which have persuaded the learned Judges of the High Court in forming an opinion that prosecution story was doubtful.  The learned  Judges have also noted that the prosecutrixs hymen could  have  been ruptured by a fall also and there  was  no corresponding  injury  on the private parts of  the  accused

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which  factors taken together rendered the prosecution story doubtful.

   Here  it  would  be worthwhile to mention  that  in  his statement  under  Section  313 of the Cr.P.C.   the  accused denied the prosecution story and at the end of the statement stated  that  he was suffering from mental disorder  at  the time  of  the  incident.  While the learned  Sessions  Judge found the plea raised by the accused of no significance, the learned  Judges of the High Court have observed that in view of  the mental condition of the appellant who was  suffering from schizophrenia before and after the occurrence there is a reasonable doubt as regards one or more of the ingredients of  the  offence.  In support of such observation the  High Court  has  referred  to  the  decision  of  this  Court  in Dahyabhai Chhaganbhai Thakkar Vs.  State of Gujarat - (1964) 2 Cr.L.J.  472.

   We have heard the learned counsel for the parties.  Shri Anil  Soni,  the learned counsel appearing for the State  of Himachal Pradesh has vehemently attacked the judgment of the High  Court  submitting that on the evidence  available  the findings  arrived at by the learned Sessions Judge were  not liable  to  be interfered with and the judgment of the  High Court verges on perversity.  An entirely unmerited acquittal and that too from a serious charge where an innocent girl of tender  years was raped by a distant relation of hers in her own  house  has  occasioned a gross failure of  justice  and therefore  the judgment of the High Court deserves to be set aside, submitted the learned Counsel for State.  Shri Shrish Kumar  Misra,  the  learned counsel for the  respondent  has supported  the judgment of the High Court.  Having carefully considered the contending submissions, we are of the opinion that  the appeal deserves to be allowed and the judgment  of the  High Court deserves to be set aside.  We have given our thoughtful  consideration  to the submission made  and  have independently  appreciated  the  evidence   to  satisfy  our judicial  conscious.   We deal with each of  the  reasonings which  have  prevailed with the High Court in  doubting  the prosecution story.

   Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same  solely  on  the ground of delay in lodging  the  first information  report.   Delay has the effect of  putting  the Court  in  its guard to search if any explanation  has  been offered  for  the  delay,  and if  offered,  whether  it  is satisfactory   or   not.   If   the  prosecution  fails   to satisfactorily explain the delay and there is possibility of embellishment  in  prosecution  version on account  of  such delay,  the  delay  would  be   fatal  to  the  prosecution. However,  if  the delay is explained to the satisfaction  of the  court,  the  delay  cannot by itself be  a  ground  for disbelieving and discarding the entire prosecution case.  In the  present  case, PW1__the mother of the prosecutrix is  a widow.   The accused is a close relation of brother of  late husband  of  PW1.  PW1 obviously needed her  family  members consisting  of her in-laws to accompany her or at least help her  in  lodging the first information report at the  police station.   The  incident having occurred in a  village,  the approach  of the in-laws of PW1 displayed rusticity in first calling  upon  the father of the accused and complaining  to him  of  what his son had done.  It remained  an  unpleasant family  affair  on  the next day of the incident  which  was

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tried  to  be settled, if it could be, within the  walls  of family.   That  failed.   It  is thereafter  only  that  the complainant, the widow woman, left all by herself and having no  male  family member willing to accompany her,  proceeded alone  to  police  station.  She was lent moral  support  by Ruldu  Ram,  the village Panch, whereupon the report of  the incident  was lodged.  The sequence of events soon following the  crime  and  as described by the  prosecution  witnesses sounds quite natural and provides a satisfactory explanation for  the  delay.   It  was found to be  so  by  the  learned Sessions  Judge.   The  High Court has not looked  into  the explanation  offered  and  very   superficially  recorded  a finding of the delay having remained unexplained and hence fatal  to the prosecution case.  It is common knowledge  and also judicially noted fact that incidents like rape, more so when  the perpetrator of the crime happens to be a member of the  family or related therewith, involve the honour of  the family  and  therefore there is a reluctance on the part  of the  family of the victim to report the matter to the police and carry the same to the court.  A cool thought may precede lodging of the FIR.  Such are the observations found to have been made by this Court in State of Punjab Vs.  Gurmit Singh &  Ors.,  (1996)  2 SCC 384 and also in the case  of  Harpal Singh (1981) SCC Crl.  208.  We are satisfied that the delay in  making  the  FIR has been satisfactorily  explained  and therefore does not cause any dent in the prosecution case.

   According  to  the  High  Court,   the  FIR  states  the occurrence  of  rape to have taken place in the room on  the first  floor of the building but according to the  statement of  PW1 as recorded in the Court, the rape was committed  on the prosecutrix in the open on the lintel of the house thus, according  to the High Court, there was a doubt raised about the  place  of  the incident which was an infirmity  in  the prosecution  story.   The room and the lintel  are  situated close  to  each  other.  PW1 is not an  eye-witness  to  the incident.  When she reached home she found her daughter, the victim  of  rape lying on the lintel of the house below  the cot.   A perusal of the site plan shows the distance between the  two  places  is  insignficant.   Moreover,  such  minor inconsistency  coming  from the mouth of PW1, who is not  an eye- witness, was of no significance and caused no infirmity in  the  prosecution case when the overall narration of  the incident   given  by  her  is   found  to  be  natural   and trustworthy.   It  is  pertinent to note that PW1  was  only corroborating the statement of PW7, the young victim of rape and  the latters testimony was found to be very natural and inspiring  confidence by the learned Sessions Judge who  had recorded  her  statement.   The learned Sessions  Judge  had himself  inspected the site of the incident and noted in his inspection  note  inter  alia  that the  other  houses  were situated at a distance and another house situated nearest to the  house where incident had taken place was about 50 yards away.   The main road was at a distance of 100 or 150  yards from  the house as shown in the site plan and there was also a tree which blocked the vision to some extent from the main road  towards the first floor and rooms as shown in the site plan  on  the first floor.  Thus, the place of the  incident was  secluded  one and not visible from  distance.   Similar facts  were  deposed to by the investigating  officer.   The learned  Sessions  Judge had rightly noted in his  judgment, relying on the evidence adduced and the observations made at the  time  of spot inspection, that the room and the  lintel are  situated near to each other and therefore the so-called inconsistency  was  immaterial and insignificant.  The  High

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Court  was  not right in ignoring this finding of the  trial court   or   even  otherwise   making   this   insignificant discrepancy,  if at all it is a discrepancy, a major  lacuna in the prosecution case.  It is not so.

   So  far  as  non-examination of other witnesses  and  an adverse  inference  drawn  by the High  Court  therefrom  is concerned,  here  again we find ourselves not  persuaded  to subscribe  to  the  view  taken  by  the  High  Court.   The prosecutrix PW7 has stated that soon before the incident she was  playing with three girl-children of the same age as  of hers  and they were present when the accused committed  rape on her.  One of the girls picked up a broom and had tried to scar  away  the accused by striking the broom on him.   This little  friend  of the victim had also raised a hue and  cry but  none  from the neighbourhood came to the  spot.   These girls  were none else than daughters of her uncle.  What the High  Court  has failed to see is that these girls  were  of tender  age and could hardly be expected to describe the act of  forcible sexual intercourse committed by the accused  on PW7.   Secondly,  these girls would obviously be  under  the influence  of  their  parents.  We have  already  noted  the co-sister  of  PW1  turning hostile and not  supporting  the prosecution  version.   How  could  these  little  girls  be expected  to be away from the influence of their parents and depose  freely and truthfully in the Court?  Non-examination of  a  material witness is again not a mathematical  formula for  discarding  the  weight of the testimony  available  on record  howsoever natural, trustworthy and convincing it may be.   The charge of withholding a material witness from  the Court levelled against the prosecution should be examined in the background of facts and circumstances of each case so as to  find  whether  the witnesses were  available  for  being examined  in  the  Court  and   were  yet  withheld  by  the prosecution.    The   Court   has   first  to   assess   the trustworthiness  of  the evidence adduced and  available  on record.   If the Court finds the evidence adduced worthy  of being  relied  on then the testimony has to be accepted  and acted  on though there may be other witnesses available  who could  also  have  been  examined  but  were  not  examined. However,  if  the  available   evidence  suffers  from  some infirmity  or  cannot  be accepted in the absence  of  other evidence  which  tough available has been withheld from  the Court  then  the  question of drawing an  adverse  inference against   the  prosecution  for   non-examination  of   such witnesses may arise.  It is now well-settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix  corroborated  by  medical  evidence  and  other circumstances  such  as the report of  chemical  examination etc.   if  the same is found to be natural, trustworthy  and worth  being relied on.  If the evidence of the prosecutrix inspires  confidence, it must be relied upon without seeking corroboration  of her statement in material particulars.  If for  some  reason  the  court finds it  difficult  to  place implicit reliance on her testimony, it may look for evidence which  may  lend  assurance  to   her  testimony,  short  of corroboration  required  in the case of an accomplice.   The testimony  of  the  prosecutrix must be appreciated  in  the background  of  the entire case and the trial court must  be alive  to its responsibility and be sensitive while  dealing with  cases  involving sexual molestations. ___ is the  law declared in State of Punjab Vs.  Gurmit Singh & Ors.  (1996) 2  SCC 384.  [Also see State of Rajasthan Vs.  N.K.  -(2000) 5  SCC  30, State of Himach Pradesh Vs.  Lekh Raj & Anr.   - (2000)  1  SCC 247, Madan Gopal Kakkad Vs.  Naval Dubey  and

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Anr.   -  (1992)  3 SCC 204].  In the present  case  we  are clearly  of the opinion that in view of the accused being  a relation of the in-laws of the mother of the prosecutrix and the  other  young  girls who are alleged to  have  been  not examined being from the family of such in-laws, it is futile to  expect that such girls would have been allowed by  their parents  to be examined as witnesses, and if allowed,  could have  freely  deposed  to  in the Court.   The  question  of drawing  an  adverse inference against the  prosecution  for such non-examination does not arise.

   The  observations  made and noted by Dr.   Mudita  Gupta during  medico legal examination of PW7 clearly make out the prosecutrix  having been subjected to rape.  The prosecutrix has spoken of penetration in her statement.  The discovery of  spermatozoa  in the private part of the victim is not  a must  to  establish penetration.  There are several  factors which  may  negative  the presence of spermatozoa.   [See  - Narayanamma  Vs.   State of Karnataka - (1994) 5  SCC  728]. Slightest penetration of penis into vagina without rupturing the  hymen would constitute rape.  [See - Madan Gopal Kakkad Vs.   Naval Dubey - (1992) 3 SCC 204].  The suggestion  made in the cross examination of Dr.  Mudita Gupta that injury of the  nature found on hymen of prosecutrix could be caused by a  fall  does  not  lead  us  anywhere.   Firstly,  no  such suggestion  was  given to prosecutrix or her  mother  during cross  examination.   Secondly,  why would the girl  or  her mother implicate the accused, charging him with rape, if the injury  was caused by a fall?  There is nothing to draw such an  inference not even a suggestion, to be found on  record. Answer to the suggestion made to Dr.  Gupta cannot discredit the prosecution case in the absence of any other material to support  the  suggestion.   So is the case with  absence  of external  marks  of violence on the body of the victim.   In case  of  children  who  are   incapable  of  offering   any resistance  external  marks  of violence may not  be  found. (See Modis Medical Jurisprudence, 22nd Edn., p.502).  It is true  that  marks of external injury have not been found  on the person of the accused but that by itself does not negate the prosecution case.  Modi has opined (see, Modi ibid, page 509)  that even in the case of a child victim being ravished by  a grown up person it is not necessary that there  should always  be  marks  of injuries on the penis in  such  cases. Further,  it is to be noted that about two days had  elapsed between  the time of the incident and medical examination of the  accused  within  which  time minor  injuries,  even  if caused, might have healed.

   Lastly,  remains  the  observation  of  the  High  Court regarding  mental state of the accused-respondent.  The plea taken  by  the accused was that he was suffering from  some mental  disorder and not that he was insane at the time  of incident.   In  his defence the accused examined  Dr.   R.S. Dalwalia, DW2.  He had examined the accused on 9.6.1992 on a requisition  made  by jail authorities for  his  psychiatric examination.  He was diagnosed to be a case of schizophrenia and  necessary treatment was prescribed for him.  Before the commencement  of  trial the learned Sessions Judge had  also held  an  enquiry under Section 329 of the Code of  Criminal Procedure  to find out if the accused-respondent was fit and capable  to defend himself.  Vide order dated 24.6.1993  the learned  Sessions Judge recorded a finding that the  accused was  fit  to make his defence and accordingly the trial  was proceeded  ahead.  The only provision of law relevant to the plea  of the accused is Section 84 of the Indian Penal Code,

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1860 which provides that nothing is an offence which is done by  a  person  who, at the time of doing it,  by  reason  of unsoundness  of mind, is incapable of knowing the nature  of the  act,  or  that  he is doing what  is  either  wrong  or contrary  to  law.   Such is neither the plea  nor  evidence adduced  by the accused.  In Dahyabhais case (supra) relied on  by the High Court, this Court has held - when a plea of legal  insanity is set up, the Court has to consider whether at  the  time of commission of the offence the  accused,  by reason  of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or  contrary  to  law.   The   crucial  point  of  time  for ascertaining  the  state of mind of the accused is the  time when  the offence was committed.  Whether the accused was in such  a  state of mind as to be entitled to the  benefit  of Section  84  of the Penal Code can only be established  from the  circumstances which preceded, attended and followed the crime.   The  High Court has picked up and  quoted  another passage  from  the  judgment dealing with  burden  of  proof according  to which the burden of proof on the accused is no higher  than  that  which  rests   upon  a  party  to  civil proceedings  and it is sufficient if the evidence adduced by the  accused  raises a reasonable doubt in the mind  of  the Court  as  regards  one or more of the  ingredients  of  the offence  including  mens  rea  of  the  accused  though  not establishing  conclusively the plea of insanity at the  time of  commission  of the offence.  We fail to  understand  and appreciate how the passage quoted by the High Court advanced the plea of the accused or raised any doubt about his guilt. On the contrary, the passage reproduced hereinabove from the judgment  of this Court in Dahyabhais case (supra) supports the   prosecution.    In  the   case  of  Dahyabhai   itself wantonness, vengeful mood or determination of the accused to see  that the victim did not escape was held not  sufficient to  prove  that  the accused was doing the  act  under  some hallucination.   The  plea raised before and entertained  by the  High Court, in the present case, was one of the accused suffering  from  schizophrenia.  Schizophrenia is one  of  a group  of  severe emotional disorders, usually of  psychotic proportions,  characterized by misinterpretation and retreat from   reality,  delusions,   hallucinations,   ambivalence, inappropriate  affect, and withdrawn, bizarre, or regressive behavior;    Popularly   and    erroneously   called   split personality.   [See  -  Medical- Legal  Dictionary,  Sloane- Docland,  p.  628].  We are not persuaded to hold even prima facie, on the material available on record, that the accused was  suffering  from unsoundness of mind and that too  of  a nature  which  would have rendered him incapable of  knowing the  nature  of the act which he was doing or  incapable  of distinguishing  between  wrong  or right as  per  law.   The entire  discussion  by the High Court on this aspect of  the case  was  irrelevant and meaningless.  The learned  counsel for the respondent has very fairly not persisted in pressing this plea before us.

   In  State  of Punjab Vs.  Gurmit Singh & Ors., (1996)  2 SCC  384, one of us, Dr.  A.S.  Anand, J.  (as His  Lordship then  was)  has  thus spoken for the court  __  A  murderer destroys  the physical body of his victim, a rapist degrades the  very  soul  of  the   helpless  female.   The   courts, therefore,  shoulder a great responsibility while trying  an accused  on charges of rape.  They must deal with such cases with  utmost  sensitivity.   The courts should  examine  the broader  probabilities of a case and not get swayed by minor contradictions   or  insignificant   discrepancies  in   the

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statement  of  the  prosecutrix, which are not  of  a  fatal nature,  to  throw  out an  otherwise  reliable  prosecution case.  The approach adopted by the High Court runs into the teeth  of law so stated and hence stands vitiated.  For  the foregoing  reasons  we hold the judgment of the  High  Court wholly  unsustainable in law.  We are unhesitatingly of  the opinion  that the Division Bench of the High Court ought not to  have  interfered  with the well-reasoned,  detailed  and well-articulated  judgment of the Sessions Court wherein  we find  no infirmity.  For the foregoing reasons the appeal is allowed.   The  judgment of the High Court is set aside  and the  judgment  of  the Sessions Court  holding  the  accused guilty  of an offence punishable under Section 376 IPC along with the sentence passed is restored.  The bail bonds of the accused-respondent  are  cancelled.  He shall be taken  into custody to serve out the sentence passed by the trial court.